Daniel William Alesi v. Walter E. Craven

(dissenting) :

The principal issue before us is the asserted inadequacy of appellee’s counsel in the state trial and on the appeal, People v. Alesi, 169 Cal.App.2d 758 , 337 P.2d 838 (1959). The district judge held that counsel’s failure to emphasize the alleged illegality of the “choking” incident, by which the officers obtained the bindle of heroin, demonstrated that the attorney was so incompetent that appellee was deprived of due process. The judge felt that the decision of the California Court in People v. Martinez, 130 Cal.App.2d 54 , 278 P.2d 26 (1954), was so clearly in point that counsel’s failure to raise the issue amounted to incompetence of constitutional magnitude. He also thought that Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952), required counsel to raise the point. I disagree.

First of all, we must look to the record before the state trial and appellate courts, rather than to the one made in the district court. The physical activity of the officers as shown by the state court record, or for that matter the district court record, does not approach the brutal tactics employed by the officers in Martinez, swpra. Besides that, the district…

This is an appeal on behalf of the State of California from a judgment of the district court which granted a petition for writ of habeas corpus. That court directed that petitioner-appellee be released unless within 60 days the state authorities shall have instituted proceedings to retry him on the charge that formed the basis for the conviction complained of. We affirm.

Appellee was convicted in 1958 of possessing narcotics and the conviction was affirmed. People v. Alesi, 169 Cal.App.2d 758 , 337 P.2d 838 (1959). In 1969 he petitioned the district court for a writ of habeas corpus.

An evidentiary hearing was held and the district court determined that petitioner’s constitutional rights were violated in a number of significant particulars. In its findings of fact, the district court recited:

In its specific findings, the court noted that appellee did not have adequate trial and appellate counsel, he was arrested without a warrant only on suspicion after information was supplied by an unidentified informant whose name and reliability were not established, and that jailhouse informants’ hearsay statements were used as substantive evidence against him.

The district court made…

446 F.2d 742 Daniel William ALESI, Petitioner-Appellee, v. Walter E. CRAVEN, Respondent-Appellant. No. 25331. United States Court of Appeals, Ninth Circuit. July 21, 1971. Frederick R. Millar, Jr., Deputy Atty. Gen. (argued), William E. James, Asst. Atty. Gen., Evelle J. Younger, Atty. Gen., Los Angeles, Cal., for respondent-appellant. Norman Elliott (argued), John W. McClure, Los Angeles, Cal., for petitioner-appellee. Before DUNIWAY, WRIGHT and KILKENNY, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 This is an appeal on behalf of the State of California from a judgment of the district court which granted a petition for writ of habeas corpus. That court directed that petitioner-appellee be released unless within 60 days the state authorities shall have instituted proceedings to retry him on the charge that formed the basis for the conviction complained of. We affirm. 2 Appellee was convicted in 1958 of possessing narcotics and the conviction was affirmed. People v. Alesi, 169 Cal.App. 2d 758 , 337 P.2d 838 (1959). In 1969 he petitioned the district court for a writ of habeas corpus. 3 An evidentiary hearing was held and the district court determined that petitioner's…